Copyright Termination

Jack Kirby drew superhero cartoons for Marvel Comics. The recent article in the N.Y. Times, regarding the efforts by Kirby's heirs to terminate his prior transfer of copyright to his superhero artwork, raises an interesting question relating to the proper timing of copyright termination. Kirby drew a lot of superhero cartoons over the years, including X-Men and Fantastic Four. About the same time that Disney announced its proposed acquisition of Marvel, Kirby's heirs sent termination notices to Marvel and others seeking to terminate Kirby's prior copyright transfer of his artwork.

Kirby's heirs are not the only folks seeking to take back old copyright transfers. The granddaughter of A.A. Milne sought to do so as to a prior copyright grant but was unsuccessful. Some heirs of John Steinbeck also sought to terminate a prior copyright grant but were rebuffed. In fact, it is possible for heirs of a creator to terminate successfully prior copyright transfers. Last year, the heirs of Jerry Siegel, one of the original creators of the Superman comics, successfully terminated Siegel's prior copyright transfer to DC Comics. To terminate properly is a bit tricky and requires some mathematics and a calendar.

Section 304(c) of the Copyright Act allows termination of copyright transfers made prior to January 1, 1978, provided the copyright was in its first or renewal term as of that date, and provided further that the copyright was not created as a work for hire, or the transfer was not made by will. Subject to these limitations, any pre-1978 transfer can be terminated by an author, or by an author's statutorily defined heirs, at one or the other of the following periods of time:

1. Between the end of the 56th year through the 61st year after the copyright was secured (that is, following first publication). Or, if termination did not occur during this period, then

2. Between the end of the 75th year through the 80th year after the copyright was secured (after first publication).

In either of these cases, a statutorily required notice must be given at least two years prior to termination during one of these periods. The notice cannot be given more than ten years prior to the date of termination.

Let's see how this all works. Since today is September 24, 2009, and if the minimally required two year termination notice is given today, then the first date that a prior grant can be terminated pursuant to such notice is September 24, 2011. The oldest secured copyright that can be thus terminated under the first termination period would be for a work first published 61 years previous, in 1950. Any work first published by 1950 or later can be terminated under the first termination period, but nothing earlier.

If the first termination period is not available to terminate, then the second termination period may be. Under the second termination formula, if a statutory notice is given today for a termination on September 24, 2011, then the oldest secured copyright that can be terminated would be for a work first published 80 years ago, in 1931. Any work published after that date can be terminated under the second formula, but nothing earlier.

If an author or an author's statutory heir owns an interest in a cartoon, or other artwork, or other work first published in 1931 or later, and provided that the copyright remains valid and the prior grant was not a work for hire nor by will, then it is possible that a pre-1978 grant is terminable. But the termination is tricky and must be accomplished according to precise statutory requirements.

Hi ho silver, Lone Ranger. Up, up and away, Superman.